In previous posts on this blog, Paul Kish and I have both discussed the important federal criminal appeal that is currently pending here in Atlanta, Georgia before the Eleventh Circuit, the federal court that hears appeals from cases in Georgia, Alabama and Florida. As previously discussed here and here, later this year, the Eleventh Circuit will decide whether the pattern jury instruction that courts typically utilize in federal fraud cases accurately defines what the government must prove in order to convict an individual who is charged under the federal mail fraud statute.

Specifically, the Court will decide “whether the district court erred when it gave the pattern jury instruction about mail fraud . . . and declined to instruct the jury that the government must prove that the defendants devised or participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension.” In addition, the Court will also address whether it should overrule the decision that established the rule which now requires the Government to prove that a defendant participated in a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension.

As discussed by Ellen Podgor over at the White Collar Crime Prof Blog, the attorneys representing the defendant in this important federal criminal case recently filed their initial brief. In addition, the National Association of Criminal Defense Attorneys also recently filed an amicus brief in support of the positions asserted by the defendant. The defendant’s brief can be found here, and the brief filed on behalf of NACDL can be found here. The importance of this case cannot be overstated, and we will be sure to follow this case until it concludes.